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ELCDismissedNot stated in the judgment (arising from ELC Case No. 648 of 2015)· [2025] KEELC 5964 (KLR)

Machariah & another v Noble Star Academy & another (Environment and Land Miscellaneous Case E061 of 2025) [2025] KEELC 5964 (KLR)

Environment and Land Court
29 August 2025
1,647 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Even with a valid court judgment, Kenyan landowners cannot evict occupants without strictly following the notice rules in Section 152E of the Land Act.

What this practically means

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Executive summary

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The applicants, holders of a judgment delivered on 9th June 2023 in ELC Case No. 648 of 2015 declaring them legal joint owners of Plot No. 68 Komarock Shopping Centre and granting a permanent injunction and damages, moved the court by notice of motion dated 20th March 2025 under Sections 3 and 3A of the Civil Procedure Act and Sections 9(1) and (2) of the Auctioneer Rules, seeking an eviction order against the respondents and police assistance in default. The 1st respondent, who claimed to have purchased the property from the 2nd respondent and built a school, filed a replying affidavit seeking to resist the eviction and to stay proceedings pending ELC No. 618 of 2025. The court struck out the replying affidavit because it was not attested by an advocate who is a commissioner for oaths, rendering the application unopposed. Nonetheless, the court examined the merits. It noted the 1st respondent was not a party to the earlier suit and that the 2023 judgment did not grant eviction. Applying Section 152E of the Land Act, Cap 280, and the decision in Atik Mohamed Omar Atik v Joseph Katana, the court found the applicants' eviction notice dated 25th February 2025 failed to meet the statutory requirements, including service on the deputy county commissioner and the OCS of the police division. Holding that a valid judgment does not dispense with the statutory eviction procedure, the court dismissed the motion with no orders as to costs.

Key legal issues

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01

Whether eviction orders should issue where the eviction notice did not comply with Section 152E of the Land Act

Holding

The application was dismissed because the applicants' notice of eviction dated 25th February 2025 did not meet the statutory requirements of Section 152E of the Land Act, notwithstanding that the applicants held a valid final judgment.

Reasoning

Section 152E requires a notice of not less than three months, in writing in a national and official language, published in the case of large groups, specifying terms for removal of buildings and crops, and served on the deputy county commissioner and the OCS of the police division. The court found the applicants' procedure fell short of these requirements and held that a valid judgment does not excuse non-compliance with the statutory eviction procedure.

p. 3
02

Whether the 1st respondent's replying affidavit was properly before the court

Holding

The replying affidavit sworn on 25th April 2025 was struck out as it was not attested by a commissioner for oaths, rendering the application unopposed.

Reasoning

The affidavit bore a stamp of the same firm that drew it and lacked attestation by an advocate who is a commissioner for oaths. It therefore failed the test for admission as a pleading document. The court, however, proceeded to determine the application on its merits rather than allowing it automatically by default.

Legal principles established

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  • An eviction from private land requires strict compliance with the notice requirements of Section 152E of the Land Act before a court will issue eviction orders
  • An affidavit must be attested by an advocate who is a commissioner for oaths to be admitted as part of the pleadings
  • A court must still satisfy itself on the merit of an application even where it is unopposed

Court orders

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  1. 1.The 1st respondent's replying affidavit sworn on 25th April 2025 is struck out for failure to comply with attestation requirements
  2. 2.The notice of motion dated 20th March 2025 is dismissed
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 3 and 3A
  • Auctioneer RulesSections 9(1) and (2)
  • Land Act, Cap 280Section 152E

Cases cited (6)

  • E.T v Attorney General & Another
    [2012] eKLR
  • Kiptum v Birir & Another
    (Civil Appeal 66 of 2020) [2023] KECA 482 (KLR)
  • Isaac Otieno Oduor v Mpaka Holding Ltd
    [2019] eKLR
  • Juliana Akinyi Owino v Kiarie Shoe Stores
    [2014] eKLR
  • Opande v Opondo
    (Environment and Land Miscellaneous Application 16 of 2023) [2024] KEELC 1702 (KLR)(4 April 2024)(Ruling)
  • Atik Mohamed Omar Atik & 3 others v Joseph Katana & Another
    (2019) eKLR
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act and Sections 9(1) and (2) of the Auctioneer Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Machariah & another v Noble Star Academy & another (Environment and Land Miscellaneous Case E061 of 2025) [2025] KEELC 5964 (KLR)", Case Analysis (2025). Not stated in the judgment (arising from ELC Case No. 648 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5964/eng@2025-08-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.